In the Matter of the Petition by

NORTHWEST MISSOURI STATE UNIVERSITY,
Maryville, Missouri 64468,

Proposed Annulment of Second-Class Mail Privileges for
"BULLETIN OF NORTHWEST MISSOURI STATE UNIVERSITY"

P.S. Docket No. 3/42

March 6, 1975

Rudolf Sobernheim Administrative Law Judge

APPEARANCES: Larry L. Zahnd, Esq.
Zahnd and Whan 324 1/2 North Main Street
Maryville, Missouri 64468

Grayson M. Poats, Esq.
Law Department U.S. Postal Service
Washington, D.C. 20260 for Respondent

INITIAL DECISION

This is a proceeding initiated by Petitioner pursuant to 39 C.F.R. Part 954 to contest the ruling of Respondent, represented by the Manager of the Mail Classification Division, Finance Department U. S. Postal Service (hereinafter sometimes referred to as the "Manager") which on 26 April 1974 annulled, subject to the outcome of this proceeding, Petitioner's second-class mail privileges in respect of the "Bulletin of Northwest Missouri State University" (hereinafter referred to as the "publication" or the "Bulletin").

The reasons for this ruling were stated by the Manager as follows (Pet'r Ex. A):

"Section 132.211, Postal Service Manual, provides that only newspapers and other periodical publications may be mailed at the second-class rates. A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily, each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature.

The above definition of a periodical is based on a Supreme Court ruling in the case of Houghton v. Payne , 194 U.S. 88 (1904). The Winter of 1974 (No. 1) issue of 'Bulletin of Northwest Missouri State University' is a reprint of the October, 1972 (No. 12) issue with very minor changes made to update the general information included about the University. The Spring 1974 (No. 2) issue is a reprint of the Summer 1973 (No. 3) issue with minor changes made to update the information. Statements on the front and on page 1 note that the Spring 1974 issue is a General or Undergraduate Catalog supplement.

This material does not meet the second-class periodical requirements and is more appropriately classified as miscellaneous printed matter of the third-class of mail.

It is not possible for this material to qualify as second-class matter by mailing it at regular scheduled intervals and by placing on it the identification statements (section 132.25, Postal Service Manual) which a proper issue should bear.

The matter of irregularities in the preparation and issuance of the subject publication was first brought to your attention in October 1972. Every effort was made to advise you of second-class requirements in order to help you make the changes necessary to bring 'BUlletin of Northwest Missouri State University' into conformance with these requirements. However, after a period of a year and a half, not one of the issues submitted to this office for review meets all of the applicable second-class requirements.

The publication is not being issued in accordance with applicable second-class laws and regulations and, therefore, the second-class privilege will be annulled in accordance with the procedures outlined in the closing paragraphs of this letter."

The Manager concluded his letter with information on further administrative procedures:

"The second-class mail privileges will be annulled effective 15 days from the receipt by you of this ruling unless within that time you file at the post office where the publication has second-class entry a written statement showing compliance or how you intend to comply with the lawful requirements for second-class mail privileges.

If you do not desire to file a statement showing compliance or intention to comply, you may contest this ruling by filing a petition within 15 days from its receipt in accordance with the provisions of Section 954.8 of the attached copy of the 'Rules of Practice in Proceedings Relative to the Denial, Suspension or Revocation of Second-Class Mail Privileges.'"

Petitioner on 11 May 1974 filed its complaint in this proceeding. A hearing was held subsequent to which both parties submitted affidavits presenting facts as to which accurate evidence was not available at the hearing or which transpired only thereafter. The latter was the publication of issue No. 4 of the 1974 Bulletin a copy of which was received in evidence. All of these documents are considered part of the record on which this Initial Decision is rendered. Both parties also submitted briefs.

FINDINGS OF FACT

1. Petitioner is one of five regional state universities within the State of Missouri. It started in 1905 as a normal school, became a state teachers college in 1919, a state college in 1949 (T 66) and a university in 1972. VERNON'S ANN. MO. STAT. (1965) 174.020, 174.030. The university now has about 4,500 students (T 67).

2. Petitioner has enjoyed second-class mail privileges for its Bulletin since it was first published in 1906. Petitioner's president testified that the Bulletin was "basically the catalog" (T 65; see also T 91), referring to the "general" (or undergraduate) and the "graduate" catalogs of course offerings. These are now published in alternate years as an economy measure.

3. In the past, the Bulletin has been published with certain irregularities in its format and frequency (Pet'r Ex. I). Although its stated frequency is quarterly (PS Form 3526, filed 28 Sep. 1973 (Resp. Ex. 7)) it published as many as twelve issues in the calendar year 1972 (see Resp. Ex. 3).

4. In 1973 Petitioner published four Bulletin issues, designated as Nos. 1 through 4 of volume LXVII and as Winter, Spring, Summer and Fall issues. These were respectively a volume of University Studies, the Field Service Catalog, a so-called mini-catalog supplement and the Graduate Catalog (Pet'r Ex. K). Publication of the Field Service Catalog has been discontinued after the department was abolished in 1973 (T 103-4, 110). The Studies are now mailed as third class mail (T 110).

5. In 1974 Petitioner published four issues of volume LXVIII, numbered and designated in the same manner, which were respectively the so-called view book, a mini-catalog supplement, the Undergraduate Catalog and a Handbook of Financial Resources (Pet'r Ex. K, Resp. Ex. 8).

6. Publication plans for 1975 include the view book and the Graduate Catalog but are otherwise indefinite (T 105, 111).

7. Petitioner printed in 1973 29,300 copies of each Bulletin issue and 13,500 copies of the latest issue published by September 1973, a mini-catalog supplement. On the average 15,000 copies were mailed, 8,000 of the then latest issue. The balance are used at the University or are left-overs (Resp. Ex. 7). Issues are regularly mailed to a list of 1120 addressees (Aff. Brown, 16 Oct. 74), mainly other universities and public agencies. The bulk of the copies are mailed to those who ask for them, such as prospective students, other schools or employers or high school counselors (T 67-68).

8. The actual publication times of the issues do not follow an exact schedule. Thus, the 1974 Fall issue was not published and mailed until 18 to 20 December 1974, within four days of the end of the season (Aff. Brown, 19 Dec. 74).

9. The origins of the present controversy go back to 1972.

a. In November 1972 the Manager advised the Postmaster at Maryville, Missouri, the office of entry of the Bulletin, of numerous irregularities in Petitioner's compliance with the second-class mail regulations in the publication of the Bulletin and forecast revocation of second-class mail privileges unless the irregularities were corrected. The letter stated in relevant part (Pet'r Ex. C):

"The second-class mail privilege is extended only to copies of regular issues of newspapers and other periodical publications. Miscellaneous printed matter is not mailable at the second-class rates of postage. Issues of the 'Bulletin of Northwest Missouri State University' may not be prepared as folders, circulars, brochures, etc., or in such a way as to take from them the actual characteristics of a periodical publication. Third-class matter may not be converted into second-class matter, that is, into issues of the 'Bulletin of Northwest Missouri State University' merely by printing thereon the identification statements, or some of the identification statements, which a regular and proper issue of that periodical should bear.

"The title, 'Bulletin of Northwest Missouri State University' (nor the former title, 'Bulletin of Northwest Missouri State College') is not shown on the front or cover page of any of the issues submitted in accordance with the requirements in section 132.25a, Postal Service Manual. Publications must have title indicative of a periodical publication and such title must be shown on the front or cover page in a position and in a style and size of type that will make it clearly distinguishable from the name of the institution publishing issues of the publication or any other matter appearing thereon."

The Manager's letter referred in detail to possible instances of non-compliance with applicable regulations (see Resp. Ex. 6, 8) but these particular issues are not raised in this proceeding.

b. Petitioner responded on 22 November 1972 to the Postmaster that it would cure these mentioned violations (Pet'r Ex. D).

c. In May 1973 a further issue arose as to inclusion of the University's Studies series as issues of the Bulletin. Petitioner agreed to mail it separately as third-class (Pet'r Ex. E, F).

d. Nothing further appears to have transpired until the Manager issued the ruling of 26 April 1974, contested in this proceeding (Pet'r Ex. A). After summing up the definition of a periodical publication in Houghton v. Payne , 194 U.S. 88 (1904) the Manager pointed out that issue Nos. 1 (view book) and 2 (mini-catalog) of the 1974 Bulletin were updated reprints of issues Nos. 12 of the 1972 and 3 of the 1973 Bulletins and that issue No. 2 was a general catalog supplement; that such material could not be converted into second-class mail matter by mailing it at regular intervals and placing on it identification statements required for issues of periodical publications; and, finally, no issue of Petitioner's Bulletin since his 1972 letter (Pet'r Ex. C) had met all of the applicable second-class requirements (Pet'r Ex. A).

e. Petitioner responded on 10 May 1974 that it intended to "comply with the postal requirements" and that henceforth the Bulletin would "be periodically originated and published for the purpose of disseminating public information of a public character as required by postal regulations." Petitioner also sought to distinguish Houghton v. Payne , supra , as dealing with the distinction between books and periodicals and not with public information publications. Moreover, Petitioner asserted that other educational institutions, publishing similar catalogs, were mailing them at second-class postage rates undisturbed by Postal Service action (Pet'r Ex. G). On the day following this letter Petitioner filed the complaint instituting this proceeding.

10. The only complete annual set of the Bulletin placed in the record is that for 1974.

a. (1) Issue No. 1 (Resp. Ex. 4), entitled "Bulletin of Northwest Missouri State University", is a 22-page picture book, 9 x 8 1/2 inches in size, which presents to the reader the layout of the campus and photographs illustrating the general appearance of the University, its student body and student life. The text, interspersed between the pictures, outlines overall aspects of the University, lists all the available programs, school fees and expenses and information on financial assistance. Inside the back cover is a card, severable along perforated lines, on which the reader is invited to ask for a catalog and application forms for admission and financial aid. The publication is an introductory one, intended for those making an initial inquiry or seeking general information about the University.

(2) Issue No. 1 is an updated reprint issue No. 12 of the 1972 Bulletin (Resp. Ex. 3), identical in pictures, layout and text, except for minor changes in program listings, and statements of admission procedures and fees between the two issues. The paragraph on availability of financial help has been toned down since 1972 and a restatement of dormitory rules perhaps reflects changes in student mores and parental reactions to them.

b. (1) Issue 2, called a General Catalog Supplement 1974, describes and serves as a catalog for the Associate of Technology Degree Program in life insurance, equity programs and other aspects of salesmanship and sales management (Resp. Ex. 1). The 36-page, 9 x 4 inch pamphlet contains 29 pages of descriptive text on the University calendar and personnel, on admission, cost, academic policies and degree requirements and 7 pages of course descriptions, such as are found in the usual catalogs of academic institutions.

(2) Issue No. 2 is again an updated edition of issue No. 3 of the 1973 Bulletin (Resp. Ex. 2) with such changes as are implied in updating (see subparagraph b, supra ).

c. (1) Issue No. 3 of 1974 (Resp. Ex. 6) is the Undergraduate Catalog, 1974-1976. On the cover it bears at the top the legend "Northwest Missouri State University Maryville, Missouri" at the left and separately lower to the right the single word "Bulletin". At the center of the cover are three vignettes of student life and beneath these the figures "a974-1976". Identification of the volume as the undergraduate catalog and an issue of the Bulleting appears on the first inside page. The catalog comprises 197 pages.

(i) The catalog contains a table of contents, followed by a list of administrative personnel, calendars for the two years covered, and a list of memberships of the University and its departments in professional associations.

(ii) Degree requirements are listed next (pages 9 -20) and then the actual course catalog is presented, giving a brief note on each department and listing its course offering with a capsule description of the courses. This catalog in 1974 took up 148 pages.

(iii) Another 29 pages provide general information on student service, costs and financial aids, admission and registration procedures as well as academic policies and regulations as well as a list of instructors and an index.

(2) The undergraduate catalog preceding issue No. 3 of the 1974 Bulletin (subparagraph c.(1), supra ) was published in March 1972 as issue No. 2 of the 1972 Bulletin and comprised 234 pages (Pet'r Ex. B). The general information on the University, its academic policies and degrees, admission and degree requirements and fees, living expenses and financial assistance cover the first 74 pages, followed by a course catalog of 148 pages, a listing of faculty and staff and an index. It is apparent that the part covering general information has been shifted in the arrangement of the 1974 catalog as compared to that of the earlier version and there are fewer pages devoted to it, in part probably because the information is now printed in double columns.

(3) In 1973 the University published a graduate catalog, covering the 1973-1975 biennium (Resp. Ex. 5), a document of only 124 pages, similar in format and content to the undergraduate catalog of 1972 (Pet'r Ex. B).

d. Issue No. 4 of the 1974 Bulletin (Resp. Ex. 8) resembles in the arrangement of its cover issue No. 3 (Resp. Ex. 6), although it is smaller in size ( 8 1/2 x 5 1/2 inches). It is called a "Handbook of Financial Resources" and so shown on the cover which the general catalog (Resp. Ex. 6) was not. It is an 88-page pamphlet dealing with all of the student financial aid programs available at the University (grants, loans, University employment and scholarship), followed by a brief overview of financial aid in question-and-answer form and a cross-reference chart.

11. The mail classification specialist who drafted the revocation letter (Pet'r Ex. A) for the Manager's signature prior to the preparation of the letter reviewed the issues of March 1972 (Pet'r Ex. B), October 1972 (Resp. Ex. 3), Spring (see Pet'r Ex. K), Summer and Fall (Resp. Ex. 2, 5) 1973, and Winter and Spring 1974 (Resp. Ex. 1 and 4). The Spring 1973 issue was a Field Service catalog which Petitioner has since discontinued.

12. Petitioner has shown that in recent years it has received a large number of bulletins, i . e . catalogs similar to its own, from numerous academic institutions, all mailed as second-class mail (Pet'r Ex. J; T 96-98). Respondent's mail classification officer, who initially handled and proposed revocation proceeding in respect of the Bulletin, testified that the Mail Classification Division had reviewed over 100 college publications for second-class mail requirements in the last 2 or 3 years and had revoked or denied applications for second-class mail privileges in 10 to 15 instances (T 17). This is the first appeal to come before the Office of Administrative Law Judges of the Postal Service.

CONCLUSIONS OF LAW

1. Under the second-class mail statutes such mail embraced, as it does now, "newspapers and other periodical publications" (39 USC 4351), when entered and mailed in accordance with sections 4352 to 4357. These provided in relevant part that a "periodical publication" was entitled to be mailed at second-class postage rate if it was (1) regularly issued at least four times a year; (2) issued from a known office of publication; (3) formed of printed sheets; (4) "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry"; and (5) maintaining a legitimate list of subscribers (39 USC 4354(a) to (5)). However, periodical publications meeting only the first three conditions set forth in section 4354 were entitled to second-class mailing privileges if published by "a regularly established State institution of learning supported in whole or in part by public taxation" (39 USC 4355(a)(2)).

2. At the time when Petitioner was granted second-class mail privileges for the Bulletin, it was established by the U. S. Supreme Court decision in Houghton v. Payne , 194 U.S. 88 (1904) that a publication was bound not only to comply with the conditions of section 4354 but had to conform to the generally understood characteristics of periodicals.

3. Hence, all periodical publications which did publish information of a public character might not qualify for second-class mail privileges. Publications which failed, however, to publish such information or other topics referred to in section 4354(a)(4) could never qualify unless exempted from that requirement by section 4355(a) as Petitioner was. hence, under the law as it stood in 1906 the fact that Petitioner published public information, while true, was not necessary to or determinative of its entitlement to second-class mail privileges.

4. The Postal Service regulations on qualifications for second-class mail privileges, codified in section 132.2 of the Postal Service Manual (PSM) and also published as section 132.2 of 39 CFR, set forth the same basic qualifications as were found in the former statutes. The only difference is that these particular requirements are now set forth as separately numbered subsections to section 132.22, styled "Basic Qualifications". When these provisions speak of the qualifications for publications they do not set up new categories in vacuo but describe particular requirements which publications otherwise within the basic category of "newspapers and other periodical publications" (PSM 132.21; 39 USC 4351) meet. The scope or meaning of the terms employed therein must be read in the light of Houghton v. Payne , 194 U.S. 88 (1904) and its progeny, down to the most recent exemplifications. See Florists' Transworld Delivery Association , P.S. Docket No. 1/167(Am. P.S. Decision 1974); Shepard's Citations, Inc. , P.S. Docket No. 1/88 (1974); National Auto Research Publications, Inc. , P.S. Docket No. 2/131 (1975).

5. Hence, Petitioner's major premise that a periodical publication, publishing public information, is outside Houghton v. Payne , supra , is erroneous and, though it be true that the contents of Petitioner's Bulletin are public information, that fact alone does not entitle its publisher to mail it at second-class postage rates. Indeed, under the former statute (39 USC 4355) a publication published by a State University was entitled to second-class mail privileges although it was specifically relieved of compliance with the "public information" requirement of former section 39 USC 4354(a)(4). The current regulations, however, make no such distinction (PSM 132.231).

6. Under Houghton v. Payne , supra at p. 97, a periodical, as ordinarily understood, is a publication: (i) appearing at stated intervals, (ii) each number of which contains a variety of original articles by different authors, (iii) incomplete in itself, (iv) indicating a relation with prior or subsequent numbers of the same series, and (v) a connection between different numbers of the series in the nature of the articles appearing in them. The ruling of the Manager (Pet'r Ex. A) is broad enough to advise Petitioner that its compliance with each and every part of this definition was put in issue by Respondent. The ruling stated expressly that not one of the issues submitted by Petitioner to the Manager since 1972 (FF No. 11), considered by his classification specialists and officers and considered in this proceeding, met the applicable second-class requirements. If Petitioner was in doubt as to the issues, it could have sought clarification before the hearing in accordance with procedures available under 39 CFR Part 954. Moreover, the presiding administrative law judge at the hearing advised the parties and their counsel of points of law which he considered important. At no time did counsel suggest the need for a further hearing or for additional evidence except as heretofore mentioned. Hence, all material issues opened up by the reliance of the contested ruling on Houghton v. Payne , supra , are now ripe for decision.

7. In this posture of the proceeding there can be no question that the Bulletin is not a periodical publication within the meaning of the cited decisions, including Houghton v. Payne , supra , and, hence, not entitled to be mailed at second-class postage rates.

8. Plainly, the Bulletin, though containing some textual material, is predominantly composed and published as successive catalogs of courses of instruction, each valid for a set future period and deprived of nearly all usefulness thereafter. Such catalogs are third- or fourth-class mail and do not constitute second-class mail matter, however dressed up. Florists' Transworld Delivery Association , supra , so holds and is followed here. Nor can the Bulletin be likened to the transportation guides which have been held entitled to second-class mail privileges as non-descript publications. See Houghton v. Payne , supra , at pp. 96-97. The Amended Postal Service Decision in Florists' Transworld Delivery Association , supra , also sets forth the reasons why this category of publications should not be expanded beyond its present scope and, as applied to the Bulletin, it is unquestionably correct.

9. There exists in the instant case, however, substantial doubt that the Bulletin can properly be considered a periodical publication at all. For each issue is complete and separate in itself and bears no relation to prior or subsequent issues. No kind of continuity or connection exists between the different numbers.

a. Thus the catalogs, each issued for a biennium, are destined overwhelmingly for use by those who would like to or do attend the University for such period. Such persons need to consult neither prior nor subsequent issues; each catalog stands on its own. Each successive catalog reproduces partly the material of its predecessor which remains valid, but as the two undergraduate catalogs in the record (Resp. Ex. 6, Pet'r Ex. B) show, in different sequences and arrangement, as if each catalog were - as in fact it is - a separate new publication.

b. The lack of connection or continuity is well illustrated by issue No. 4 of the 1974 Bulletin, the Financial Handbook (Resp. Ex. 8). It is on its face a book by itself of which subsequent updating editions may appear. Although touching on a topic of importance to students for a long time, it is a "first" in the Bulletin and bears the earmarks of a definitive statement of the topic, valid and final but for such changes in figures as might from time to time be made.

c. That such changes are minimal once the University has settled on a final format is shown by the view book (Resp. Ex. 3, 4) which repeats in its 1974 edition the entire layout and all photographs of its 1972 edition with but minor changes in text caused by tuition and administrative changes made by the University. But there is no question that in fact the view book is a complete volume by itself, unconnected with the Financial Handbook or the catalogs. The diversity of unconnected Studies and catalogs, making the 1973 Bulletin (FF 4) illustrates the same point.

d. The Bulletin thus illumines one of the basic points made in Houghton v. Payne , supra , to wit: that a series of separate, complete and independent works cannot be converted into a periodical publication by giving them a collective title and numbering them as issues of a series. Hence, the Bulletin fails to meet the basic test of Houghton v. Payne , that of being a "periodical" publication as distinguished from the seriatim publication of individual volumes by the same publisher, be they famous novels or view books, handbooks and university catalogs.

10. The record does not support Petitioner's charge that it has been singled out for revocation proceedings. Although far too many institutions, publishing similar catalogs, are still allowed to mail them as second-class mail, Respondent is actively seeking to eliminate the abuse of inopportunely granted second-class mail privileges. Given the large number of such institutions, the process, on the case-by-case basis available to Respondent, is needs slow. That the action which created the present disputes is an ancient one does not, however, prevent its correction. Houghton v. Payne , supra , at pp. 99-100. See Shepard's Citations, Inc. , supra.

11. Petitioner finally suggests that the instant procedure is inappropriate because in its response to the Manager's ruling (Pet'r Ex. A) it indicated its intent to comply with postal requirements (Pet'r Ex. G). In fact, Petitioner' contested the Manager's position on every point and demanded that Respondent in effect design a format for the Bulletin that would meet the Postal Service regulations. Its letter failed completely to state how Petitioner would comply with the applicable regulations. Such a letter is not planned compliance which under the terms of the Manager's letter would stay his ruling. But even if it were otherwise, Petitioner abandoned the compliance rout when it filed its complaint and went ahead with this proceeding. Its validity cannot now be called into question.

12. Accordingly I hold that the Manager's ruling was correct, that Petitioner is not entitled to second-class mail privileges for the Bulletin, and that the same were properly annulled.